102-NLR-NLR-V-04-PONNAMPALAM-et-al.-v.-MURUGASAR-et-al.pdf
( 296 )
1900.
November 2.
PONNAMPALAM et al. v. MURUGASAR et al.
C. R., Point Pedro, 6,854.
Res judicata—Evidence.
M., being a decree-holder in D. C. case No. 24,475 against G., caused acertain land to be seized in execution as the property of G. P. claimedthe land. On the District Judge rejecting his claim, he sued M. and G.to have it declared that the land Was not liable to be seized by M., andthat it may be declared P.’s property.
M. pleaded the judgment in D. C. case No. 288 as res judicata,Whereby P.’s claim to part of the same land, upon a seizure made byanother judgment-creditor of G., was rejected.
Held, that such judgment was not res judicata, though it may serve asevidence against P.
T
HE first defendant in this case, being the decree-holder incase No. 24,475 of the District Court of Jaffna, sued out
( 237 )
writ against the property ol the second defendant and caused theFiscal to seize and advertise for sale an undivided two-thirdsshare of a divided two-thirds of a certain land which theplaintiffs claimed as the property of the second plantiff, who wasthe wife of the first plaintiff. The Fiscal duly reported theplaintiffs’ claim to the District Court of Jaffna, which inquiredinto the matter and disallowed the plaintiffs’ claim with costs.
The plaintiffs now brought the present action under section 247of the Civil Procedure Code, praying that an undivided one-thirdshare out of the said divided two-thirds share of the said land bedeclared the property of the second plaintiff; that the same beordered to be released from seizure under the said writ; and thatthe first defendant be decreed to pay to plaintiffs Rs. 25 damagesand the costs of this action.
The first defendant pleaded inter alia, as matter of law, that anaction for the land in dispute was instituted between the sameparties in case No. 288 of the District Court of Jaffna, in which afinal decree, which had been affirmed by the Supreme Court, waspassed against defendant, and that the decree in question wasres judicata as against the plaintiffs.
The Commissioner upheld the plea of res judicata and dismissedplaintiffs’ action with costs.
The plaintiffs appealed.
Maartensz, for appellant.—The judgment in ease No. 288 pleadedas res judicata was not between the same parties as in the presentcase. In that case, the claim made by the present plaintiff wasas against another execution-creditor, and the claim was for aportion of a land half a lacham in extent, and the District Judgedismissed it. In the present case, the claim of the plaintiff is foran undivided one-third share of the land. A decree for a portioncannot operate as a bar to a subsequent suit for the remainder,even though the two suits may be between the same parties. InGunawardana v. Nacliiappa Ghetty (1 S. 0. J». 227), the plaintiffsclaimed certain lands as against a judgment-creditor, and his claimbeing disallowed, it was held that that order was no bar to anotheraction by the same claimant as against another judgment-creditorwho was not privy to the previous creditor.
2nd November, 1900. Bonser, C.J.—
The first defendant in this case, who was the execution-creditorin case No. 24,775 of the District Court of Jaffna, caused a certainland, which he alleged belonged to his judgment-debtor, to beseized. The plaintiff in the present case claimed the land, but
1900.
November 2.
( 298 )
1900.
November 2.Bosseb, C.J.
his claim was rejected. He thereupon brought this action to haveit declared that the land was not liable to be seized in executionby the first defendant.
It appears that on a previous occasion another judgment-creditorwho had a judgment against the same judgment-debtor hadseized this same land and that the plaintiff put in a claim to it,and that his claim was rejected, and that he then brought asimilar action to the present, which action was dismissed.
The Commissioner in the present case held that the previousdecision was binding upon the plaintiff and was a bar to thepresent action.
The plaintiff has appealed.
It is quite clear that the former action was not a conclusive barto the present action. It may be that the plaintiff has sinceacquired a title to the land by donation or some other means.Moreover, the action was not between the same parties, and itcannot therefore be treated as res judicata, even though there hasbeen no change in the title since the previous action. It is onlyevidence against the plaintiff.
The point was considered by the Collective Court in the case ofGunawardana v. Nachiappa Chetty, reported in 1 S. 0. R. S27.
The case must go back to the Court of Requests for the purposeof being tried.
The plaintiff is entitled to the costs of the appeal.